Mocco v. Jersey City Zoning Board of Adjustment

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1670-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2007

Before Judges Fuentes, Grall and Chambers.

Plaintiff Lorraine Mocco appeals from a final judgment entered in an action in lieu of prerogative writs. The trial court affirmed defendant Jersey City Zoning Board of Adjustment's (the Board) grant of use, density, height and bulk variances to defendant Brunswick 9 Associates, LLC (Brunswick), the contract purchaser of the subject property (the Brunswick lot). Because the Board's grant of the use variance lacks adequate support in the record and does not comport with the statutory criteria, N.J.S.A. 40:55D-70d, we reverse.

The Brunswick lot consists of 1.814 acres presently occupied by several one-story, dilapidated and obsolete industrial buildings currently in use. The lot fronts on Brunswick Street between Ninth Street, to its south, and the midpoint of Tenth Street, to its north. It backs onto property occupied by railroad tracks and an easement for the New Jersey Turnpike, which lies to its west. The adjacent property to the north, which is owned by Mocco, fronts on Brunswick Street and runs from the midpoint of Tenth Street north. Although Tenth Street was vacated in the 1940s, Mocco's property and the Brunswick lot have easements that give both rights of ingress and egress over the vacated street.

The Brunswick lot is located in an R-2 zone. The permitted use is townhouses with a maximum of three dwelling units each, a height of no more than forty feet and a maximum density of fifty-five dwelling units per acre, or ninety-nine units for this 1.814 acre lot. Maximum lot coverage is eighty percent and maximum building coverage is sixty percent.

Brunswick sought use, height and density variances needed to permit a "mid-rise residential dwelling" with a height of sixty-two feet and 143 dwelling units and variances authorizing lot coverage of ninety-four percent and building coverage of eighty-one percent.*fn1 The proposed apartment building will include a garage to accommodate parking and deliveries. Cars will enter and leave the garage via the easement on the former Tenth Street. Trucks will enter by way of that easement and leave on Ninth Street. The garage will have a "green roof" that will retain rainwater, support the growth of vegetation and provide a dog-run for the building's resident's use.

This section of R-2 zoning is occupied entirely by Brunswick's lot and the railroad and turnpike property behind it. Brunswick's professional planner described the zone as a "pocket zone" consisting of one block surrounded by special purpose areas.

There are lower density uses to the immediate south of the Brunswick lot and higher density uses to its immediate north and east. To the south of the lot, across Ninth Street, there is four-and-one-half acre city park on the west side of Brunswick Street and an R-1 zone, in which one and two-family dwellings are permitted, on the east side of Brunswick Street. Farther south on Brunswick street, beyond the R-1 zone, lies the Ninth Street Redevelopment Area. The permitted residential use in that area is townhouses with a density of seventy-five dwelling units per acre. Mocco's property to the north is vacant but is located in the Jersey Avenue Redevelopment Area. In that area, mid-rise buildings with a maximum height of seventy-feet, a maximum density of fifty dwelling units per acre and maximum lot and building coverage of sixty and eighty percent are permitted. Density in the Jersey Avenue Redevelopment Area may be increased up to a maximum of eighty units per acre if the developer contributes land or funds for open space in the area. Directly across Brunswick Street between Ninth and Tenth Streets there is a historic warehouse that is sixty-five feet tall and presently used for storage.

In the opinion of the applicant's planner, R-2 zoning is "inappropriate" because the Brunswick lot lacks any frontage on the west and has only easement access on its north. The proposed building would help "buffer" the railroad and turnpike uses from the neighborhood use to its east more effectively than townhouses.

Brunswick's experts were equivocal about the feasibility of developing the lot with the townhouses permitted in the R-2 zone. At one point the planner conceded that it would be possible, but he later said he did not know. The architect testified that the lot could accommodate twenty-nine townhouses of three units each. He also said that he had not concluded that townhouses would "work," had not "looked at townhouses on the site[,] and . . . could not see that being a viable option with the Jersey City Zoning Ordinance for this site." He noted that there were conflicts between current law and the zoning ordinance but did not elaborate. He did not believe he could design townhouses at a "comparable" density and meet all of the requirements of the zoning ordinance.

Claire Davis, Jersey City's Supervising Planner and Secretary to the Planning Board, recommended approval of the variances, subject to conditions. Davis had worked on the city's zoning ordinance, which was adopted in 2001, and on the redevelopment areas established in the vicinity of the Brunswick lot. Although the planning board selected and recommended R-2 zoning for this property after considering the structures and uses in the surrounding area, there were some "bloopers" in the ordinance. Moreover, a nearby redevelopment area could have been expanded to include this underutilized industrial lot, and the multi-family residential uses permitted in the Jersey Avenue Redevelopment Area also were appropriate for this lot. Davis further noted that during the two years preceding Brunswick's application, changes in construction code enforcement made townhouses with more than two dwelling units less efficient. In her view, replacement of the non-conforming industrial use with a mid-rise apartment building of the sort permitted in the nearby Jersey Avenue Redevelopment Area with an open-space contribution would be consistent with the master plan and ordinance and provide a public benefit. The "green roof," which Brunswick agreed to add at the recommendation of the city's planners, would diminish the negative impact of granting the lot and building coverage variances.

The members of the public and the objector questioned the mass of the proposed apartment building and its impact on flooding, traffic and open space. They questioned why the developer could not adapt the lot to accommodate the townhouses permitted in this zone that is situated near a large park, in a ...

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